Race-conscious College Admissions Policies at Risk

The Supreme Court of the United States will reconsider the role of race in college admissions once again, hearing a case challenging 50-plus years of systematic effort to increase diversity in the nation’s higher education. The legal challenges to remove race-conscious admissions, which came about in compliance with affirmative action in the 1960s, have been posed by numerous parties since 1978.

Most recently, such an attempt was made in late January of this year when the court agreed to hear two cases against Harvard University and the University of North Carolina (UNC). Both lawsuits were brought by Students for Fair Admissions (SFFA), a Virginia-based advocacy group that opposes the race-conscious admission process, alleging the very admissions policies to increase diversity for historically disadvantaged students have, in fact, discriminated against Asian American students.

The group has previously reached the Supreme Court twice, leading similar cases by Abigail Fisher against the University of Texas at Austin in 2013 and 2016. The organization and Fisher argued that the university’s use of race in the admissions — which she assumed unfair for white applicants like herself — prevented her from getting an acceptance to the institution in 2008. Specifically, the plaintiff argued that the school’s use of race in the admissions decision violated her right to equal protection under the Fourteenth Amendment. However, the court found the university’s race-conscious admissions policy constitutional in both cases.

In the ongoing legal dispute, the organization accuses Harvard of violating Title VI of the Civil Rights Act of 1964 which states, “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”

There has been a fierce debate among the general population about whether students of Asian descent have been negatively affected by the race-conscious admissions policy. Photo: Whoisjohngalt / Licensed under CC BY-SA 4.0

The plaintiff goes as far as to argue that the school’s race-based admissions policies intentionally discriminate against Asian American applicants in order to limit their number in the student body. The group also asserts that if race were not a factor and admissions used traditional quantitative measures like test scores and transcripts, more Asian American students would be eligible to enroll.

Although nine states have banned race-based affirmative action — California, Washington, Florida, Michigan, Nebraska, Arizona, New Hampshire, Oklahoma, and Idaho — many experts in higher education policy, academics, and college administrators still believe in the positive effects of the race-conscious admissions policy. They especially argue for its unignorable impact in correcting inequity in higher education, particularly at the nation’s most prestigious institutions that rely heavily on affirmative action to maintain diversity.

Affirmative action in higher education and complying race-conscious admissions policies have survived legal challenges by various interest groups for over five decades. However, there is a growing concern for their future; currently, the Supreme Court is filled with an unprecedented majority of conservative justices by six to three, after the demise of the renowned Justice Ruth Bader Ginsburg in 2020.

As this is SFFA’s first legal challenge against affirmative action since the court has been crowded with conservative judges, concerns are mounting for the future of diversity in higher education. Unfortunately, those concerns are not unwarranted. A study by Mark Long, professor of public policy and governance at the University of Washington, found that there has been a long-term decline in the number of Black, Latinx, and Native American students at public universities in the nine states that banned affirmative action.

He told Inside Higher Ed, “Alternative policies and administrative decisions have, so far, been unable to fully replace race-based affirmative action.”

Former President Donald Trump met with families of color in 2019 to empower them with education choices. However, he continuously worked to eliminate affirmative action, which was instated to correct an inequity in higher education. Photo: Official White House Photo by Tia Dufour / Licensed under Public Domain Mark 1.0

Until his last days at the White House, former President Donald Trump had vigorously worked to take down affirmative action and race-based admissions, eagerly investigating colleges and universities that the administration suspected of discriminating against white and Asian applicants. The Justice Department under Trump had even filed an amicus brief, backing the lawsuit against Harvard. However, under Biden’s leadership, the department changed its side and now supports Harvard, urging the Supreme Court to dismiss the legal brief it had previously submitted.

The current legal battle may change the status quo of the higher education sector in the U.S. once more, which has already been significantly affected by the coronavirus pandemic. Even with the elimination of SAT or ACT scores for admissions by numerous institutions across the country, most schools, except the most prestigious ones, experienced a drop in student enrollment numbers. The National Student Clearinghouse Research Center reported that “Compared to fall 2020, total undergraduate enrollment declined by 3.1%, for a total two-year decline during the COVID-19 pandemic of 6.6%, or 1,025,600 students since fall 2019.” It also noted that students of color were disproportionately impacted.

The Supreme Court combined two legal cases against Harvard and UNC and will proceed with initial one-hour oral arguments by both participating parties, which could begin as early as October this year. Consequently, the fate of affirmative action in higher education and race-conscious admissions policy could be decided in the summer of 2023.


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